Medical Records and the Law

418 CHAPTER 11: LEGAL THEORIES IN IMPROPER DISCLOSURE CASESprovider. For example, a disclosure is typically privileged if failure to divulgemedical records information would jeopardize the health orsafety of the patient or others. 79 In one case, the Supreme Court of Oklahomaheld that a patient could not sue for breach of the physicianpatientprivilege when a physician revealed medical information topolice, leading to the patient’s arrest for rape. 80 A patient sought treatmentat a hospital for a bite wound on his genitals. A physician whotreated the patient later learned that police were looking for a suspectedrapist with that injury. The physician told the police about the patient,leading to his arrest. The patient sued the physician for breaching thephysician-patient privilege. The court dismissed the suit, holding thatthe physician-patient privilege was not designed to protect criminalsfrom apprehension. The court also ruled that a public policy exceptionallows physicians to reveal otherwise confidential medical informationwhen the information will benefit the public. 81In several jurisdictions, a patient waives the physician-patient privilege,foreclosing claims for breach of the privilege, by putting informationexchanged within the privilege at issue in a lawsuit—for example,a medical malpractice lawsuit. 82 However, courts disagree as to thescope of the waiver. (This issue is discussed in detail in Chapter 10.)Patient consent to, or authorization for, disclosure is another defenseto a breach of confidentiality suit, although the disclosure must be carefullytailored to remain within the scope of the patient’s consent or authorization.In an interesting case involving the newspaper publicationof a patient’s photograph that was taken in a hospital’s AIDS clinicwaiting room, a New York appeals court ruled that a patient could suethe hospital and a treating physician for breach of privilege because hehad consented to the picture only after they had assured him that hewould not be recognizable. 83 When the photograph was published, afriend recognized the patient. Although the court ruled that the hospitalhad not violated the privilege simply by allowing the media to bepresent in the waiting room of its infectious disease unit, it held thatthe physician-patient privilege protects the identity of a patient, as well79See, e.g., Horne.80Bryson.81See also Mull v. String, 448 So. 2d 952 (Ala. 1984).82See, e.g., Fedell v. Wierzbieniec, 485 N.Y.S. 2d 460 (Sup. Ct. 1985). For a discussion ofwhich jurisdictions have adopted this view, see Kemper.83Anderson v. Strong Memorial Hospital, 542 N.Y.S. 2d 96 (App. Div. 1989).